Russell E. Adkins, M.D. v. Arthur P. Christie

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 12 2007
No. 06-13107 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 04-00080-CV-WDO-5

RUSSELL E. ADKINS, MD,

Plaintiff-Appellant,

versus

ARTHUR P. CHRISTIE, Individually,
and in his Official Capacity as
the Administrator of Houston Medical
Center,
ANTHONY L. ALFORD, Individually and
in his Official Capacity as Executive
Director for Medical Affairs of Houston
Medical Center,
DANIEL A. DEIGHTON, Individually and
in his Official Capacity as Chief of
Staff and in his Official Capacity as a
Member of the Medical Executive Committee
at Houston Medical Center,
FREDERICK W. JENNART, Individually and
in his Official Capacity as a Member of
the Medical Executive Committe at Houston
Medical Center,
DAVID N. HARVEY, MD, Individually, and in his
Official Capacity as a Member of the Medical
Executive Committee at Houston Medical
Center, et al.,
 Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
_________________________

(June 12, 2007)

Before EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.

WILSON, Circuit Judge:

This appeal concerns an evidentiary privilege known as the “medical peer

review privilege.” The privilege seeks to protect from discovery and disclosure

records containing performance reviews and assessments of physicians by their

peers, primarily in connection with their practices at hospitals. The issue before us

is whether to recognize the privilege in federal civil rights cases. The Fourth and

Seventh Circuits have denied the privilege in these cases. We join them in

declining to recognize a privilege for documents relating to medical peer review

proceedings in federal discrimination cases.

We also conclude in this opinion that the district court improperly limited

the scope of discovery and, as a result, prematurely granted Defendants’ motion for

summary judgment.

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 Background

These issues arose in Dr. Russell Adkins’ federal civil rights action, filed

pursuant to 42 U.S.C. §§ 1983, 1981 and 1985. In his complaint, Adkins, an

African-American staff physician with privileges at the Houston Medical Center

(“HMC”), asserted that HMC and several HMC physicians (collectively

“Defendants”) discriminated against him on racial grounds in their implementation

and utilization of HMC’s peer review and physician disciplinary process. In

conformity with Medical Staff Bylaws, Adkins was provisionally admitted to

practice at HMC in 1997 for a minimum of one year. Adkins contends that during

this first year, the head of the Department of Surgery, Dr. Deighton, unilaterally

chose to review all of Adkins’ medical charts, an unusually high level of review for

new physicians. None of Adkins’ cases during his first year were found to warrant

further investigation by a peer review committee. Nevertheless, HMC extended

his provisional status by six months on the grounds that he allegedly failed to

follow protocols for pre-admission of surgical patients, failed to complete medical

records in a timely manner and had problems with availability for call. Adkins

concedes that he failed to complete medical charts within the time frame dictated

by HMC’s Medical By-laws on eight different occasions during that time.

However, he argues that such delays were a hospital-wide problem and that

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Deighton himself acknowledged having received warning letters for failure to

complete his charts in a timely manner.

Adkins further claims that in 2001, and again in 2002, HMC imposed

additional conditions on his continued employment even though he had a good

record as a physician. Finally, Adkins claims that HMC deliberately mishandled

the care of one of his patients, S.K., and later used that case as a pretext to take

action against him. Specifically, he alleges that nurses falsified reports related to

S.K.’s condition, refused to contact him about her care, and contravened his orders

relating to her care, resulting in her pain and discomfort. He claims that the staff at

HMC incorrectly informed S.K. that he was out of town, and deliberately withheld

information about her status from him, which ensured that he was unavailable to

assist her. He argues that HMC then used S.K.’s case as grounds to begin peer

review of his practices, and unfairly determined that he was unavailable to assist

S.K., meting out the disproportionately harsh penalties of suspension and

subsequently, termination against him.

Defendants dispute this characterization of Adkins’ practice at the hospital.

They allege that Adkins repeatedly experienced problems with availability for call,

timely completion of medical records and failure to follow hospital protocol on

patient admissions. Defendants further allege that in 2002, Adkins grossly

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mishandled a surgical operation on a seven-month-old infant by operating on him

without proper surgical equipment, thus raising additional questions about his

professional judgment. Finally, Defendants allege that peer review of Adkins’

treatment of S.K. was automatically required by hospital procedure that mandated

review of all patient cases involving repeat surgeries. They claim that external

peer review determined that Adkins’ availability and level of care was inadequate,

and that in light of his record, suspension was an appropriate measure to protect the

health and safety of patients at the hospital.

In May 2004, Defendants sought dismissal of Adkins’ complaint for failure

to state a claim on qualified immunity grounds. The district court converted this

motion into one for summary judgment and initially allowed discovery on issues

relating to qualified immunity only. During discovery, Adkins requested

documents relating to peer review of all physicians at the hospital during the seven

years that Adkins was a member of the hospital staff. In response, Defendants

filed a motion for a protective order, arguing that Adkins was seeking information

relating to the peer review process, which was covered by the Georgia medical

peer review privilege.1 Although the court concluded that the privilege applied to

1
Georgia requires that “[t]he proceedings and records of medical review committees
shall not be subject to discovery or introduction into evidence in any civil action against a
provider of professional health services arising out of the matters which are the subject of
evaluation and review by such committee.” O.C.G.A. § 31-7-143. The Georgia Supreme Court

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federal civil rights actions, it nevertheless ordered Defendants to provide Adkins

with descriptions of all incidents giving rise to peer review, without disclosing the

documents themselves. The court limited production to peer review documents

covering physicians it deemed similarly situated to Adkins, namely physicians in

the Department of Surgery during a five-year time period, rather than documents

relating to all physicians with staff privileges at HMC during the seven-year time

period requested by Adkins.

In response to Defendants’ motion for summary judgment, the district court

undertook in-camera review of the disclosed peer review files. The court also

reviewed a list identifying the race of the forty-seven physicians at HMC that were

suspended in the last five years. Following this review, the court granted summary

judgment in favor of Defendants. Adkins now appeals the judgment, contending

that the court improperly recognized the privilege, and improperly limited the

scope of his discovery request.

The Medical Peer Review Privilege

Adkins argues that the district court incorrectly ruled that federal law allows

for a medical peer review privilege in discrimination cases. The decision to

has interpreted this statutory mandate as placing “an absolute embargo upon the discovery and
use of all proceedings, records, findings, and recommendations of peer review groups and
medical review committees in civil litigation.” Emory Clinic v. Houston, 258 Ga. 434, 369 S. E.
2d 913, 913 (1988) (per curiam).

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recognize a privilege is a mixed question of law and fact, which we review de

novo. Fed. R. Evid. 501; Carman v. McDonnell Douglas Corp., 114 F.3d 790, 793

n.2 (8th Cir.1997). While all fifty states and the District of Columbia recognize

such a privilege, the Eleventh Circuit has not yet definitively ruled on whether it

applies in federal court, and as we previously stated, the Fourth and Seventh

Circuits have failed to recognize the privilege. See Viramani v. Novant Health,

Inc., 259 F.3d 284, 289 (4th Cir. 2001); Mem’l Hosp. v. Shadur, 664 F.2d 1058,

1063 (7th Cir. 1981) (per curiam).

Evidentiary privileges in the federal courts are governed by Fed. R. Evid.

501, which provides:

Except as otherwise required by the Constitution . . . as
provided by Act of Congress, or in rules prescribed by the
Supreme Court . . . , the privilege of a witness . . . shall be
governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason
and experience.

Fed. R. Evid. 501.

The Federal Rules of Evidence empower the federal courts to “continue the

evolutionary development of [evidentiary] privileges.” Trammel v. United States,

445 U.S. 40, 47, 100 S. Ct. 906, 910, 63 L. Ed. 2d 186 (1980). However, these

privileges remain disfavored and should not be lightly created. United States v.

Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108, 41 L. Ed. 2d 1039 (1974). The

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Supreme Court has cautioned that privileges “contravene the fundamental principle

that the public . . . has a right to every man’s evidence.” Univ. of Pa. v. EEOC, 493

U.S. 182, 189, 110 S. Ct. 577, 582, 107 L. Ed. 2d 571 (1990) (alteration in

original) (internal quotation marks omitted). Accordingly, there is a presumption

against privileges which may only be overcome when it would achieve a “public

good transcending the normally predominant principle of utilizing all rational

means for ascertaining truth.” Trammel, 445 U.S. at 50, 100 S. Ct. at 912. This is

a high standard, and “only the most compelling candidates will overcome the law’s

weighty dependence on the availability of relevant evidence.” Pearson v. Miller,

211 F.3d 57, 67 (3d Cir. 2000).

The Supreme Court’s decision in Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct.

1923, 135 L. Ed. 2d 337 (1996), provides us with useful guidance on how to

determine whether an evidentiary privilege should be created. In Jaffee, the

Supreme Court identified some factors as relevant to the inquiry including: 1) the

needs of the public good; 2) whether the privilege is rooted in the imperative need

for confidence and trust; 3) the evidentiary benefit of the denial of the privilege;

and 4) consensus among the states. 518 U.S. at 10-16, 116 S. Ct. at 1928-31. In

deciding whether to recognize a privilege, we must consider that there is “a general

duty to give what testimony one is capable of giving, and that any exemptions

8
which may exist are distinctly exceptional, being so many derogations from a

positive general rule.” Id. at 9, 116 S. Ct. at 1928.

Defendants, joined by amicus curiae the Georgia Hospital Association,

primarily rely on the needs of the “public good” to support their argument for

recognizing a medical peer review privilege. They contend that the absence of the

privilege would chill supervising physicians, making them less candid in their

performance evaluations of staff physicians for fear that their assessments and

statements might be used for improper purposes. For example, they contend that

peer review materials might be used to generate medical malpractice litigation.

They raise concerns about patient confidentiality. They argue that the quality of

the oversight process, and thus of healthcare itself, would suffer if the privilege is

not recognized.

We agree with HMC that the privilege it seeks would serve important

interests. The privilege would promote vigorous oversight of physician

performance. But the privilege must be considered against a corresponding and

overriding goal – the discovery of evidence essential to determining whether there

has been discrimination in employment. Guided by the principles disfavoring

privileges, as well as the Jaffee factors, we conclude that the medical peer review

process does not warrant the extraordinary protection of an evidentiary privilege in

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federal civil rights cases. Here, we are confronted with a claim of racial

discrimination within the peer review process itself, implicating the important

social goal of eliminating employment discrimination. See, e.g., Univ. of Pa., 493

U.S. at 193, 110 S. Ct. at 584 (finding that exposing “invidious discrimination is a

great, if not compelling governmental interest”).

Further, the documents that HMC seeks to protect are critical to Adkins’

discrimination claims. The only way that Adkins can demonstrate the existence of

disparate treatment in his case against the hospital is to compare his peer review

with the peer review files of other physicians at HMC. In Shadur, the Seventh

Circuit was similarly confronted with a situation where recognizing a medical peer

review privilege would effectively bar a plaintiff’s claim. Shadur, 664 F.2d at

1062-63. In that federal antitrust action, Plaintiff sought medical peer review

materials in order to demonstrate that the Defendant physicians used the review

process discriminatorily in furtherance of a conspiracy to destroy his practice and

thus limit competition. Id at 1063. Taking into account the compelling public

policy favoring such antitrust actions, the court found that the privilege should not

be recognized when it would prevent the plaintiff from asserting his claim

altogether. Id. In Viramani, the Fourth Circuit was similarly guided by the

evidentiary benefit presented by peer review documents in employment

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discrimination cases. 259 F.3d at 289. Confronted with a claim virtually identical

to the one at hand, the court found that “[t]he interest in facilitating the eradication

of discrimination by providing perhaps the only evidence that can establish its

occurrence outweighs the interest in promoting candor in the medical peer review

process.” Id.

We recognize that health care providers, like HMC and its supervising

physicians, have a legitimate interest in keeping peer review documents

confidential and in protecting them from widespread dissemination. However,

“[t]here is an important distinction between privilege and protection of documents,

[with] the former operating to shield the documents from production in the first

instance, [and] the latter operating to preserve confidentiality when produced.” Id.

at 288 n.4. In the absence of the privilege, the district court retains its authority to

protect HMC’s interests through other established means such as protective orders,

confidentiality agreements, and when appropriate, by disclosure only after an in-

camera review of these documents. See, e.g., Kerr v. United States District Court,

426 U.S. 394, 405, 96 S. Ct. 2119, 2125, 45 L. Ed. 2d 725 (1976) (noting that

methods such as in-camera review of documents can be used to balance a party’s

need for confidentiality against an adverse party’s need for evidence); Marrese v.

American Acad. of Orthopaedic Surgeons, 726 F.2d 1150, 1160 (7th Cir. 1984) (en

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banc) (noting that there are different ways for district courts to protect non-

privileged documents) rev’d on other grounds, 470 U.S. 373, 105 S. Ct. 1327, 84

L. Ed. 2d 274 (1984). The district courts are well-equipped with a variety of

mechanisms to ensure that peer review materials, once furnished through

discovery, are not compromised by wayward hands, i.e., redaction of extraneous or

confidential information, in-camera review and protective orders. The “public

good” concerns advanced by the defendants may capably be served in the absence

of a medical peer review privilege.

We are mindful of the fact that a medical peer review privilege is recognized

by all fifty states and the District of Columbia, a factor that Jaffee lists in

Defendants’ favor. The Fourth Circuit addressed this argument in Viramani, and

rejected that factor on the grounds that there is a strong evidentiary benefit to be

obtained in a discrimination case, and that the state statutes address different policy

concerns when they balance the need for candor in peer review discussions against

a plaintiff’s access to evidence in a malpractice suit. 259 F.3d at 290-91. The

interests at issue in a discrimination claim like this one are different from that of a

malpractice case, and merit a different analysis. As the Viramani court correctly

observed, “[t]here is no evidence that state legislatures considered the potential

impact on discrimination cases of a privilege for medical peer review

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proceedings.” Id. at 291. We agree that “the states’ policy decisions, reflecting

different concerns than those implicated here, [should] not inform the judgment of

the court in this case.” Id. Declining to recognize a medical peer review privilege

in federal discrimination cases provides a strong evidentiary benefit. Balancing the

interests to be derived from recognizing the privilege against the interest of

furthering the discovery of probative and relevant evidence to root out invidious

discrimination, we decline to recognize the privilege.

Scope of Discovery

Although the district court announced its recognition of the privilege, it still

ordered some limited discovery. Adkins sought to compel production of peer

review materials of all physicians at HMC during the seven-year period that he

was employed there. The district court limited Adkins’ inquiries to those involving

physicians in the Department of Surgery and to the five-year period preceding his

suspension.

We generally review the district court’s efforts to manage discovery for

abuse of discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.

1999). However, if we find that in limiting discovery, the district court “made a

clear error of judgment . . . or . . . applied an incorrect legal standard,” we must

reverse that decision. Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1159

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(11th Cir. 2004) (citing Alexander v. Fulton County, 207 F.3d 1303, 1326 (11th

Cir. 2000)). Here, we find that the district court made such an error in concluding

that review of physicians outside Adkins’ department and beyond the five-year

time limit was not relevant to the case at the bar.

Under the Federal Rules of Civil Procedure, discovery is limited to

“matter[s], not privileged, that [are] relevant to the claim or defense of any party.”

Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible at the trial

if the discovery appears reasonably calculated to lead to the discovery of

admissible evidence.” Id. In this case, HMC argues that adverse employment

action was taken against Adkins in light of his performance during his tenure. By

arguing that his record fell below standards the hospital used to judge its

physicians, HMC itself put the record and peer review of other physicians at issue.

Comparison to disciplinary measures against them is therefore clearly relevant to

the case.

HMC argues that any comparison should be limited to physicians in the

Department of Surgery since they are the only ones that are “similarly situated” to

Adkins. See Wilson v. B/E Aerospace Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).

We do not agree. While the Department of Surgery is an autonomous unit within

the Hospital, some of the infractions at issue arose from hospital-wide rules, such

14
as the requirement to complete medical charts in a timely manner. Additionally,

Adkins is entitled to compare the general standard that hospital physicians were

held to in order to establish that his punishment was excessive. The limited

number of physicians in the Department of Surgery does not allow Adkins to place

his case in the context of larger disciplinary processes of the hospital and thus

place an excessive burden on his ability to pursue his claim.

We note that although district courts have broad discretion in fashioning

discovery rulings, they are bound to adhere “to the liberal spirit of the [Federal]

Rules.” Burns v. Thiokol Chem. Corp., 483 F.2d 300, 305 (5th Cir.1973). The

Federal Rules do not give district courts “blanket authorization . . . to prohibit

disclosure of information whenever it deems it advisable to do so, but is rather a

grant of power to impose conditions on discovery in order to prevent injury,

harassment, or abuse of the court's processes.” Williams v. City of Dothan, Ala.

745 F.2d 1406, 1416 (11th Cir. 1984) (quoting Bridge C.A.T. Scan Assocs. v.

Technicare Corp., 710 F.2d 940, 944-45 (2d Cir. 1903)). The Defendants have

failed to demonstrate a burden or an abuse of process sufficient to justify such

limitations on discovery, especially in light of the highly relevant nature of the

materials sought by Adkins. Although we acknowledge that the district court’s

limits were aimed in part at protecting the confidentiality of Defendants’

15
documents, these limits excessively narrowed the scope of discovery. We

therefore conclude that Adkins was entitled to greater latitude in order to access

documents relevant to his discrimination claim, and the district court erred by

denying Adkins the opportunity to compel production of a wider range of

documents.

Summary Judgment

Adkins further challenges the district court’s grant of summary judgment in

favor of Defendants. In light of the improper limitations on Adkins’ ability to

conduct discovery, we conclude that Adkins was denied the opportunity to proffer

evidence in response to the summary judgment motion. Burns, 483 F.2d at 308

n.11. We therefore vacate the grant of summary judgment in order to allow the

parties to engage in discovery in accordance with this opinion. Accordingly, the

decision of the district court is vacated and remanded.

VACATED AND REMANDED.

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